Date: 20010514
Docket: IMM-4483-00
Neutral citation: 2001 FCT 471
Ottawa, Ontario, the 14th day of May 2001
PRESENT: THE HONOURABLE MR. JUSTICE EDMOND P. BLANCHARD
BETWEEN:
THI CHAC PHAM
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, for judicial review of a decision by the Minister of Citizenship and Immigration's delegate (the delegate) on July 21, 2000, not to exempt Thi Chac Pham (the applicant), on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act,[1] from having to make her application for a visa from outside Canada.
STATEMENT OF FACTS
[2] The applicant is a citizen of Vietnam who entered Canada as a visitor on February 12, 1998. She was granted an extension of her visa after it expired. She later applied to have her visa extended a second time, but her application was refused by the department. Since October 1999, the applicant has been living in Canada without a valid visa.
[3] On November 27, 1999, the applicant's daughter, who is a Canadian citizen, sponsored her. However, after completing a financial assessment, the delegate determined that the application could not be approved since the applicant's daughter did not meet the low income cutoff required for sponsorship.
[4] In addition to her sponsorship application, the applicant simultaneously applied for an exemption based on humanitarian and compassionate considerations under subsection 114(2) of the Immigration Act from having to make her application for permanent residence from outside the country. The reasons stated in her application were as follows:
In February 1998, my initial purpose to visit Canada was to visit my granddaughter [who] was about 3 months old at a [sic] time. I arrived in Toronto, Ont. [a] few months later, my daughter, Thi Thu Mai Phan became very ill and had a major operation at the Toronto hospital in the fall 1999. During this period, I was taking care of my daughter and grand daughter. My daughter is [sic] recovered from her illness and started working in Nov. 1999. It is very difficult to leave her and my granddaughter at this time because they do not have anyone to take care. For this reason, I would like to remain in Canada while my application for permanent residence is in process. Due to my daughter's illness, I have to extend my stay in Canada until my daughter is completely recovered. My ex-husband. met another woman. He is divorce [sic] me. He is remarried and presently living with his wife in Vietnam. If I returned to Vietnam, I have no place to live. I have to seek for shelter, employment and new life with a new community. I will be suffered [sic]
with this new adventure. In Toronto, I have at least a daughter. my granddaughter
who love me and need my support. I would like to stay in Canada because I have
a bond with my family here.[2]
[5] The applicant is a mother of four adult age children, three of whom live in Vietnam.
[6] On July 21, 2000, the delegate reviewed the applicant's application. After considering the evidence in the file, she was not satisfied that there were sufficient grounds to waive the application of subsection 9(1) of the Immigration Act and therefore rejected the application.
QUESTION OF LAW
[7] Is there any error requiring that the impugned decision be set aside?
STANDARD OF REVIEW
[8] In Baker, per Madam Justice Claire L'Heureux-Dubé, the Supreme Court of Canada clearly established that the appropriate standard of review for humanitarian and compassionate decisions is reasonableness simpliciter:
I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.[3]
ANALYSIS
[9] As established in the Baker decision, while the discretionary powers of the Minister's delegate are broad, they must be exercised in keeping with the requirements of procedural fairness. In this case, that duty requires that a thorough and fair assessment of the relevant evidence in the file be completed before a decision is rendered.
[10] To grant the exemption sought, the delegate must conclude that humanitarian and compassionate reasons in fact exist, particularly if the evidence establishes that unusual, undeserved or disproportionate hardship would be caused to the applicant seeking an exemption from subsection 9(1) of the Immigration Act, which requires that an application for permanent residence be made from outside the country.
[11] It is also important to note that Baker states that the lack of an interview or notice to the person seeking an exemption on humanitarian and compassionate considerations is not a breach of procedural fairness. The legislative provision provides the Minister of Citizenship and Immigration with great latitude to determine the appropriate procedure, including the decision to give the applicant an oral hearing. As stated by the Supreme Court, immigration officers generally do not hold interviews in every case, and this does not violate the duty of procedural fairness.
[12] In the case at bar, the delegate's decision must be analysed in accordance with the factors set out in Baker. The decision must therefore be examined to determine whether it is based on a thorough analysis of all the evidence submitted by the applicant.
[13] In that regard, the delegate's notes establish that she considered all the points raised by the applicant, namely childcare services she provides to her daughter and grand-daughter, the applicant's marital status, the degree to which she is established in Canada, her potential return to Vietnam, including the possibility of her staying with her three children who still live there:
Applicant states that her daughter and granddaughter need her to take care of them. However, there is insufficient evidence to support this statement. On the contrary, applicant states that she is financially supported by her daughter's family. Also, the child care that the applicant may be providing for her granddaughter is widely available commercially. Applicant states that returning to Vietnam would cause her hardship because her husband has divorced her since she left Vietnam and she no longer has a place to live or means to support herself. Indeed, there may be some hardship associated with being compelled to apply for an immigrant visa from outside the country. However, the applicant does have two daughters and one son in Vietnam who may support her there.
Applicant has provided insufficient evidence that she has established herself to such a degree that she would face unusual, undeserved, or disproportionate hardship if compelled to apply for an immigrant visa from outside Canada.[4]
[14] It should be emphasized once again that in the present matter, this Court acts as a review court that must determine whether the delegate's decision is unreasonable. In other words, this case is not an appeal but a judicial review. It is not for me to examine the evidence in the record and substitute my view for that of the delegate.
[15] An application for exemption must be analysed on the basis of whether "unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada" (Department Guideline 9.07(2)).
[16] Furthermore, it should be emphasized that the delegate's decision must not be construed as rejecting the applicant's application for permanent residence. Rather, it is a discretionary decision not to grant an exemption from subsection 9(1) of the Immigration Act since she determined that the applicant would not suffer any unusual, undeserved or disproportionate hardship if she left Canada.
[17] As Baker established, these types of decisions are based on the immigration officer's discretion, and unless the Court is satisfied that procedural fairness was lacking or that the decision was unreasonable given the evidence made available to the officer at the interview, the burden of proof lies with the applicant.
[18] After analysing all of the evidence and hearing the parties, I have found that the delegate's decision is reasonable and does not require this Court's intervention. The application for judicial review is dismissed.
[19] No serious question was submitted for certification.
Page: 7
ORDER
THE COURT ORDERS that:
1. The application for judicial review of a decision by the division of the Minister of Citizenship and Immigration's delegate on July 21, 2000, not to exempt Thi Chac Pham, the applicant, on humanitarian and compassionate considerations under subsection 114(2) of the Immigration Act, from having to make her application for permanent residence from outside Canada, is dismissed.
Edmond P. Blanchard
Judge
Certified true translation
Sophie Debbané, LL.B
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-4483-00
STYLE OF CAUSE: Thi Chac Pham v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 1, 2001
REASONS FOR ORDER AND ORDER BY BLANCHARD J.
DATED: May 14, 2001
APPEARANCES:
Joan Manafa FOR THE APPLICANT
Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joan Manafa
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT
[1] Immigration Act, R.S.C., 1985, c. I-2.
[2] Application record on page 16.
[4] Application record on page 1.
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